The Sin of Self-Persuasion

Vol. 40 No. 2

The author was a founder of Litigation, a former editor-in-chief, and the author of McElhaney's Litigation, Volume II, from which this article is excerpted. 

Nick Wheeler stopped Angus and me outside The Donut Hole, across the street from the Court of Common Pleas.

“I need help,” he said.

“What’s the problem?” said Angus.

“I’m trapped in a bad case that keeps getting worse, and I want out,” said Nick. “I agreed to help Mike and Ellen Pollock try a patent infringement suit they’ve got on a contingent fee. It may be worth as much as $150 million or $200 million if it’s tried right, but the way the Pollocks are approaching it, they’ll be lucky to get anything.”

“Doesn’t sound like the Pollock twins to me,” said Angus. “They’re supposed to be good lawyers.”

“That’s what I thought when I agreed to work with them,” said Nick. “But they’re patent lawyers, not trial lawyers. They’ve never had a big damages case before, and they wanted me to help them out with the entire trial.”

“What are they doing that’s hurting their case?” said Angus.

“All sorts of things,” said Nick, “big and little.

“For example, I’ve explained again and again that the most important key to getting big damages is proving big fault. There is a lot of evidence that the defendant deliberately stole their plaintiff’s idea and then created an elaborate cover-up to try to hide what it did.

“But Mike and Ellen are ignoring all that. They say the chronology of events establishes everything they need. And it may, for the purpose of getting past a motion for a directed verdict. But you don’t win a lawsuit by putting on the most minimal case the law requires. The Pollocks don’t seem to appreciate the persuasive power of showing their opponent’s skullduggery. There is a great story here that they are just throwing away.”

Angus nodded.

“Then there’s the problem of how to meet the defendant’s arguments,” said Nick. “They don’t see the danger lurking in the other side of the case. Whatever the problem, they always think the best answer is in some little bit of circumstantial evidence or maybe just a superficial quip—as if a trial were a contest of verbal agility, like a high school debate, instead of society’s moral arena where right grapples wrong.”

I liked that, so I wrote it down right then. Nick continued.

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